29 May 2016

FOUR STEPS TO SURVIVING WORKING WITH A BARRISTER IN CANADA

Your life working with a barrister can be productive or it can be miserable. In this post I'll explain to you the four steps you need to follow to make the relationship the former and not the latter.

It doesn't matter if you're being dragged kicking and screaming to court in response to a criminal charge, small claims or Superior Court of Justice civil suit against you or your business, are trapped in family law proceedings, or maybe you need to initiate a court application to clarify your rights over real estate, or the interpretation of a will, or recover money from someone. Unless you're planning to do that case yourself - and in over two decades of practice I usually don't see good outcomes for those who try the DIY route - you'll be stuck working with a barrister.

In Canada, barristers are simply lawyers who go to court. Unlike in England, they're part of the same law societies as solicitors. While we've never worn white horsehair wigs - I've heard they were too difficult to obtain in colonial times - we do sometimes wear black robes that have a habit of getting caught on door handles as we attempt to swish imperiously in and out of rooms.

Step One - Be Sure You Need a Barrister

Clarify at the start of the relationship why you need the barrister. Many people come to see me thinking they might benefit from a lawyer, but are not quite sure what the lawyer can do for them. I always tell my clients that a little legal advice can be a bargain. But going to court unless you absolutely have to go is never a bargain.

So before you contact a barrister, consider why you need one. And then when you do speak to the barrister, explore upfront exactly how he or she might be able to help you.

Don't accept vague answers from a barrister about his or her plans to help you. Instead, push the barrister to explain step by step what his or her plan is for you.

You might not really need a barrister. And it could be worth a free five minute phone call to find that out or a one hour paid consultation with a lawyer. Even if you pay up front for a bit of advice on your matter, possibly including asking the barrister to write you a formal legal opinion about the likely prospects of success of your case in court, it will still be way, way cheaper than starting to spend money on court fees once litigation has started.

You might need a psychologist or family therapist or credit counsellor or accountant more than a barrister. If you've got a neighbour dispute, you should weigh the expense of a real estate agent versus a barrister. Family counsellors for marriage troubles are definitely cheaper than family lawyers. I'm not suggesting other professionals can definitely fix your problems, but they might provide a more graceful exit to them than would litigation.

However, sometimes going to court will be the only option. Like if you've been charged with a criminal offence. Or if you are being sued by someone else. Or if you have a tax dispute with the government.

Step Two - Clarify the True Cost of the Barrister

Demand up front from the barrister a fair assessment of fees for your matter, and in turn be prepared and realistic about your ability to fund those fees. Push the barrister for a block fee if possible, even if it's only for specific stages of a case, as that will best control and predict your costs.

If fees need to be hourly, make the barrister explain why. And don't make the mistake of thinking a lower hourly rate will lead to a lower cost of the case, since a cheaper by the hour barrister might have less experience, and consequently wind up spending more time on your case.

Also don't be shocked by barrister fees. Many solicitors actually take home more money than barristers, but people usually don't complain about their seemingly "smaller" fees which are based on volume and where much of the work is being done by trained clerks. By comparison, barristers will be doing most of your work themselves, and court cases tend to suck up an enormous amount of lawyer time as compared to a simple real estate transaction which a lawyer might only personally spends one or two hours working on.

If you can't afford the fees, tell that to the barrister upfront. There may be less expensive ways of proceeding available, even if they're not the preferred ways of proceeding. Don't mislead yourself about being able to afford a potentially very costly case because you think it will settle. You always need to plan for the worst case scenario when it comes to litigation.

Regardless of whether the fees are block or hourly, don't let the barrister be vague about how extras like "disbursements" can drive up those fees. Establish at the start if there are likely to be significant disbursements like transcript costs, expert witness fees, or printing and binding fees.

A rule of thumb is that criminal cases tend to be cheaper than civil cases - even small claims - because they simply take up less barrister in-court and preparation time, settle at earlier stages, and involve fewer pre-trial proceedings. You'll usually be able to get a block fee from a barrister for a criminal case, but civil cases will usually be hourly because they're less predictable.

Costs of appeals for civil or criminal cases depend upon the complexity of the trial; a four week trial with 500 exhibits is going to cost more to appeal than a one day trail with five exhibits. But you may be able to get a block fee quote for an appeal - all the appeals I take on are done as block fees.

Step Three - Work Collaboratively with the Barrister

Press the barrister from the start of the relationship on what he or she needs from you. You giving the barrister appropriate help from the get go will make the relationship far more successful and cheaper for you.

Does the barrister want a factual chronology? A list of witnesses together with their addresses and phone numbers? Copies of possible court exhibits, including photos? You won't be able to anticipate all barrister needs, so ask. If you're having trouble getting direct answers on needs from the barrister, press the barrister's law clerks for what kinds of things they usually collect for cases. You need to work collaboratively with the barrister.

Your physical health is a collaborative endeavour with your family doctor. Same with you legal health.

Don't make the mistake of thinking that your only obligation in working with a barrister is paying the bills. Really your barrister is more of an interpreter or negotiator or intermediary between you and the court; your barrister isn't your replacement or doppelgänger. Making your barrister relationship the most result and cost effective possible requires your full participation in the case.

Step Four - Continuously Evaluate What Would be an Acceptable End Result

Evaluate in advance of retaining the barrister, and continuously reevaluate during the course of your barrister-client relationship, what would amount to an acceptable court result or end game for you. Don't enter the relationship with vague notions of "total victory" as even if your barrister gets you to that point, you might might be capable to recognizing it after you've been in the court process for a while. So be realistic in your court outcome expectations, and continually examine the options you're presented with for getting off the litigation treadmill.

In criminal cases, an acceptable result might be easier to evaluate than for civil cases. If you don't have a criminal record, and want to avoid one, a good result might be diversion or receiving a discharge, in addition to dropping of charges or an acquittal. If you do have a criminal record, but need to avoid going to jail so you can keep your job, then staying out of jail through a community based house arrest sentence might be acceptable.

I'm not saying you can't aim higher than the minimum acceptable result, but just that you need to consider your options from the start. It might take you weeks of careful reflection to figure out what result you really want. You'll have the necessary time to reflect if you consider things from day one of the barrister-client process. You might only have 24 hours to decide on a deal once a firm offer is made. If you really didn't "do it" in a criminal case, then make clear up front to your barrister that the only acceptable result to you is full exoneration. That way he won't waste his time trying to negotiate a deal for you, but rather will first try to convince the Crown the drop the charges, and second will simply prepare to take your case to trial.

In civil cases, an acceptable result might be more intangible. One result to consider is that you don't want to spend more on barrister fees than you save in settlement payments. As much as you don't want to give the other side a penny of your hard earned money, a good barrister will be frank with you about when your legal costs will outweigh your potential civil windfall.

For instance, if hire a lawyer to sue someone in small claims court for $5000 in damages, get a judgment for $4000, get $750 in court costs, and pay $5000 in legal fees, and you'll be $250 poorer than when you started. But get a judgment for $20,000 with $3000 in court costs, and you'll be $18,000 ahead on that same $5000 amount of legal fees. So for civil matters, you need to be really careful in evaluating how much your case is worth - regardless of whether you're the plaintiff or defendant.

Anytime legal fees could outstrip case worth, that is a huge red flag. People often get sucked into spending stupid amounts of money on barristers because the expense doesn't seem too bad to start with, they're overly optimistic about how quickly they can achieve victory, and they don't press their barrister sufficiently for the worst case scenario.

But there are things worth fighting for, even if fees climb. For the control and survival of your business. To be able to continue to practice your profession. But just be realistic about what you can live with, based on asking your barrister about the likely outcomes. If your barrister refuses to discuss this with you, find another barrister. But because your barrister may have hundreds of clients, don't expect him to be able to pry out of you what you really want, and to read your mind, if you don't tell him.